Critical Analysis Of The Anti Rape And Anti Honor Killing Laws In Pakistan
Introduction
Women in Pakistan have long been oppressed and denied justice. Even the subject of rape has long been considered a taboo in our society. Likewise, if a woman does not agree to an arranged marriage, has a relationship with a man despite being married, is having sexual relations with a man or does any other act that may bring “dishonor” to her family, it results in her own death by a family member.
In 2016, the Anti-Honor and Anti-Rape bills were passed which amended The Code of Criminal Procedure 1898, The Pakistan Penal Code 1860 and the Qanoon-i-Shahadat Order 1984. There have been numerous cases of rape and honor killing in Pakistan as four rape cases and two hundred and thirty-one murders in the name of honor are reported in a day.[1] The amendment in the anti-honor killing law now makes it a non-compoundable crime, the punishment of which has been set at life imprisonment instead of 14 years as previously laid down under Section 311 of the PPC.[2] The Anti-Rape Bill now sets a time limit for the cases to be resolved within six months, the identity of the rape victims has to be protected, there are penalties if information about the victim is disclosed and the extraction of DNA plus a medical test is made mandatory within twenty-four hours of reporting of the crime.[3]
The aim of this article is to analyze the strengths and weaknesses of the two pieces of legislation in light of judicial interpretation and their implementation, to deduce whether these pieces of law are practical enough to apply in reality and how effectively they can bring about a much-needed change.
Honor Killings and Rape Culture in Pakistan
The definition of rape for the purposes of this article is where a person engages in sexual intercourse with a woman under the following conditions: against her will; without her consent; under duress; if she is under the age of sixteen; or in any other circumstances that would not be regarded as legally or morally acceptable.[4] Honor killing is the homicide of a member of a family by other members, due to the perpetrators’ belief that the victim has brought shame or dishonor upon the family, or has violated the principles of a community or a religion.[5]
The case of Mukhtaran Bibi was the first “honor rape” case in Pakistan that brought international attention.[6] In 2002, Mukhtaran Bibi was gang-raped upon the order of a tribal clan because of the alleged relationship her twelve-year-old brother had with a woman from a higher caste. According to the custom, Mukhtaran Bibi was expected to commit suicide after being raped.[7] However, she did not remain silent like the many women before her who went through the same suffering and numerous others who did not even live through it because they were killed.
The problem that arises with such cases is that they are usually resolved using the panchayat system, which has no legal standing but is still prevalent in many rural towns in Pakistan.[8] This leads to a biased decision favoring the defendant who is more powerful than the poor victim. The backlash that was faced regarding this case and the failure of our courts was evident in 2005. The decision regarding the Mukhtaran Bibi case was overturned by a High Court judge in Multan against the Mastoi rapists, citing flaws in the prosecution’s case. Faiz Ahmad, the Mastoi elder who allegedly ordered the rape punishment and four other men were freed. A sixth man had his death sentence reduced to life imprisonment.[9] Initially, after many appeals, Mukhataran Bibi was able to get their acquittals suspended and the case was tried in the Supreme Court of Pakistan in 2011. The decision was in favour of Bibi.[10]
The famous case of Qandeel Baloch was a significant step towards the passing of the Anti Honor Killing Bill.[11] Her brother in an act to preserve the honor of her family murdered Qandeel Baloch.[12]
The biggest drawback regarding the decisions made by the courts in honor killing cases was that a defendant could reduce his sentence by using the defense of ‘grave and sudden provocation’.[13] The idea that killing for family honor is understandable is stated over and over again as an extenuating ground for grant of a lesser punishment.[14] Section 309 and 310 of the PPC gave the walis or legal heirs of the victim a right to waive qisas and pardon the offender or accept compensation, making murder compoundable.[15]
It can be seen that there was a definite need for legislation to be reformed to protect the victims in such cases to ensure that the laws were strict enough as to prevent criminals from such acts in the future.
Laws on Honor Killing and Rape in Pakistan
The new amendments made significant changes to curb the problematic areas in the law. Under the Anti Honor Killing Bill, the murderers will now have to face a sentence of twenty-five years of imprisonment even if the family forgives them under the Islamic concept of blood money.[16]
Section 311 of the PPC, dealt with the waiver of compounding the right in qisas and stated the following: “Provided that if the offence has been committed in the name or under the pretext of honor, the imprisonment shall not be less than 10 years”.[17]
This can be trumped if the accused under section 302 of the Pakistan Penal Code claims that he committed a murder for other reasons not included under the ambit of honor killing.[18] In such a case, the murderer will only have to face fourteen years of life imprisonment of a maximum of death penalty and then the family members can also pardon him under section 309 of the Pakistan Penal Code.[19] This can be explained through the Qandeel Baloch case whereby her brother, although having mens rea to kill under the pretext of honor, claimed that he killed her due to some financial dispute and later changed his stance to admitting to killing for honor.[20] Moreover, in an honor killing case, the police as well as courts follow the same procedure and rely on the same evidence as they would require in ordinary murder cases.[21]
In the Anti-Rape Bill, the definition of rape (section 375 of the Pakistan Penal Code) should be revised to include men and transgender people. The Bill also fails to include marital rape and rape of sex workers, as such acts are not always consensual. The most important element that the Anti-Rape Bill fails to include is the definition of rape. Only sexual intercourse involving penetration is included. Object rape or forcing an individual to have intercourse with another do not fall under the criteria of rape in PPC.
When a bill is passed, its implementation is another matter. A bill will only be a piece of legislation unless it is properly implemented. The recent cases show that there is still a desperate need for these bills to be applied and rightly so.[22]
International conventions have long been highlighting violence against women especially honor killings and rape in Pakistan, as can be seen in the most recent report of Convention on the Elimination of Discrimination Against Women (CEDAW).[23] In the most recent Amnesty International report, it can be seen that there are still the numerous amounts of cases of violence against women as 596 cases of rape and gang-rape, 36 cases of sexual assault and 186 cases of so-called “honor” crimes have been reported. There may be much more that are not even taken to the police. [24]
International bodies have been trying to help Pakistan in achieving the required livelihood for women, especially in rape and honor killing cases. Such is the work of Humanity Healing Organization.[25]
Conclusion
In order to stop sexual violence against women, we need to come up with a holistic plan that addresses women’s lack of power in society and introduce thousands of state-run helplines, shelters, victim support services and legal aid clinics for women all over the country. Increasing job opportunities for women who have nowhere else to turn is also very important. Witness protection programmes, including a victim protection program to help victims in during trial, should also be strictly implemented. These would be the practical measures to ensure that we see an increase in rape convictions. Instead of relying on boutique private efforts to address these gaps, the government must mainstream such provisions.
The implementation of these laws is a necessary step in the interest of human rights, women’s rights and for maintaining the relevance and effectiveness of the criminal law in Pakistan.
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References
[1] http://tribune.com.pk/story/913772/miserable-figures-rape-a-bigger-problem-than-meets-the-eye/
http://www.pakistantoday.com.pk/2016/12/27/231-murdered-for-honour-in-punjab-in-2016-report/
[2] http://courtingthelaw.com/2016/12/09/commentary/fiasco-of-the-anti-honor-killing-bill-201516/
[3] http://www.dawn.com/news/1167324
[4] http://www.fmu.gov.pk/docs/laws/Pakistan%20Penal%20Code.pdf
[5] https://en.wikipedia.org/wiki/Honour_killing_in_Pakistan
[6] https://www.theguardian.com/world/2005/mar/04/pakistan.declanwalsh
[7] https://www.theguardian.com/world/2005/mar/04/pakistan.declanwalsh
[8] http://www.pakistanpressfoundation.org/2012/08/jirga-panchayat-system-and-women-in-pakistan/
[9] http://news.bbc.co.uk/2/hi/south_asia/4314153.stm
[10] http://www.supremecourt.gov.pk/web/user_files/File/Crl.P.163_to_171_S.M.C.5_2005.pdf
[11] http://www.samaa.tv/pakistan/2016/07/pakistan-to-pass-law-against-honor-killings-in-weeks-maryam-nawaz/
[12] http://www.pakistantoday.com.pk/2016/07/16/fir-registered-against-brother-of-qandeel-baloch/
[13] https://www.af.org.pk/pub_files/1366345831.pdf
[14] https://www.af.org.pk/pub_files/1366345831.pdf
[15] http://www.pakistani.org/pakistan/legislation/1860/actXLVof1860.html
[16] http://www.dawn.com/news/1272833
[17] http://courtingthelaw.com/2016/12/09/commentary/fiasco-of-the-anti-honor-killing-bill-201516/
[18] http://www.dawn.com/news/1272833
[19] http://www.dawn.com/news/1272833
http://www.punjabcode.punjab.gov.pk/public/dr/PAKISTAN%20PENAL%20CODE.doc.pdf
[20] http://www.bbc.com/news/world-asia-38210428
[21] http://www.dawn.com/news/1272833
[22] http://tribune.com.pk/story/1264613/heinous-act-minor-girl-raped-panchayats-order-bahawalpur/
[23] https://societalissues.wordpress.com/category/women/violence-against-women/
[24] https://www.amnesty.org/en/countries/asia-and-the-pacific/pakistan/report-pakistan/
[25] http://humanityhealing.org/current-projects/pakistan/advocacy-against-honor-killings/
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which she might be associated.
